Coronavirus (COVID-19): adults with incapacity

Emergency provisions

The Coronavirus (Scotland) Act 2020 contained emergency provisions in three areas relating to adults lacking capacity. They were found in Schedule 3, Part 2. All have now been expired. The only one remaining of relevance is the ‘stop the clock’ guardianship provision.

This is a replacement to guidance published on 8 April 2020.

Expiry of guardianship provisions

The guardianship provisions came into force on the 7 April 2020. At that point the courts were only hearing urgent interim guardianship cases, the Office of the Public Guardian had a minimal amount of staff available and there were fewer doctors, mental health officers and solicitors available to complete the documentation required for guardianship (and renewal of guardianship) applications. Therefore to avoid guardianship applications that would have been renewed during this period from expiring before a renewal application could be lodged at court, and leaving the adult without appropriate protection, the provisions were brought in.

The conditions that existed when the provisions were brought in do not now exist. These provisions were expired at the end of the day on 30 September 2021 by the Coronavirus (Extension and Expiry) (Scotland) Act 2021.

Calculation of new expiry dates for guardianships

The ‘clock was stopped’ on 7 April 2020 (when the Act came into force) in relation to the duration of guardianships. On suspension of this provision, the ‘clock started’ and the period for which the guardianship  is in force resumed. 

The provisions were suspended from 30 September 2020 and are now expired. Therefore the ‘clock was stopped’ from 7 April 2020 up to and including 29 September 2020. This equates to 176 calendar days.

Therefore 176 days need to be added on to the original date of expiry of the guardianship to calculate the new date. For example:

Original guardianship expiry date – 20 April 2020 
Add on 176 days
New guardianship expiry date – 13 October 2020

You should note that the clock is stopped on all guardianships that were in existence when the provisions came in to force, not only those which would have expired during that period. For example a longer guardianship that expired in 2025, for instance, would still have had the clock stopped on it, so 176 days have to be added on to the expiry date. For example:

Original guardianship expiry date – 23 May 2025
Add on 176 days
New guardianship expiry date – 15 November 2025

For the limited number of guardianships granted whilst the provisions were in force, the number of days from when they were granted until the provisions were suspended should be added on to the expiry date. For example:

Date guardianship granted – 3 June 2020
“clock was stopped” up to and including 29 September 2020
Therefore number of days to add on to expiry date – 119
Guardianship granted for 3 years
New guardianship expiry date – 30 September 2023

And finally, for those guardianships granted from 30 September 2020 onwards, no additional days need to be added.